03 APRIL 2021

“The Best People,” Performance Art by Mike Lee, 2021

Based on reporting in real-time, the investigation of Mr. Gaetz may be focused on one or more of three statutes discussed below: 18 U.S.C. § 2423 — transportation of minors across state lines for sex, 18 U.S.C. § 2422 — coercion and enticement of minors for sex, and 18 U.S.C. § 2425 — use of interstate facilities to transmit information about minors for sex.

If the congressman created, possessed and/or distributed images, photographs or videos, of minors that qualify as child pornography under federal law, he would be looking at another set of crimes with Draconian penalties.

For the federal government to establish its jurisdiction over these sex crimes, the minor must be transported across state lines (section 2423) or an instrumentality of interstate commerce — mail, telephone, text, email, internet (including various so-called dating apps or chat rooms) — must be used as part of or to facilitate the crime (sections 2422 and 2425).

Even if Mr. Gaetz himself did not use an instrumentality of interstate commerce, the reporting suggests he may have been in cahoots with former Seminole County Tax Collector, Joel Greenberg, who is currently charged in a 33-count federal indictment for, among other things, child sex trafficking. Mr. Greenberg may be motivated to cooperate with federal investigations of others who are bigger fish than him. Federal law prohibits conspiracies to violate other federal laws such as child sex trafficking or the use of interstate facilities to coerce and entice minors and to transmit information about minors.

Why is conspiracy a favorite legal theory and criminal charge of prosecutors? Conspiracy opens and broadens avenues for the prosecution that may not be as available in other types of criminal charges. Charging conspiracy gives the prosecution a huge advantage, the ability to use one conspirator’s self-incriminating statements against other persons charged in the conspiracy.

One becomes a member of a conspiracy by expressly or implicitly agreeing to participate, knowing of at least one of its objects — the commission of some crime — and intending to help accomplish it. The crime of conspiracy is complete when one or more of its members performs at least one overt act for the purpose of carrying out the underlying crime. The federal conspiracy statute says:

“If two or more persons conspire . . . to commit any offense against the United States [say, a sex crime involving a minor] . . . and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”

18 U.S.C. § 371.

Partners in crime typically have the goods on each other. Anyone with criminal exposure who is facing a loss of liberty is a candidate for turning against others, including other members of an alleged conspiracy. Often, one’s loyalty to others — Michael ‘I’d-take-a-Bullet-for-Trump’ Cohen, for example — falls flaccid in the face of a realistic loss of liberty. Prosecutors and judges go easier on cooperators — targets or defendants who have the goods on others.

Conspiracy is its own crime. By that I mean one can be convicted of conspiracy without being convicted of the underlying crime that is the “object of the conspiracy” — the purpose the partnership formed which is to violate some underlying criminal law.

The following is taken from a Department of Justice publication titled CITIZEN’S GUIDE TO U.S. FEDERAL LAW ON CHILD SEX TRAFFICKING. For context, I include the complete guide:


18 U.S.C § 1591- Sex trafficking of children or by force, fraud, or coercion
18 U.S.C. § 2421- Transportation generally
18 U.S.C. § 2422- Coercion and enticement
18 U.S.C. § 2423- Transportation of minors
18 U.S.C. § 2425- Use of interstate facilities to transmit information about a minor

“Child Sex Trafficking is prohibited by 18 U.S.C. § 1591. This statute makes it a federal offense to knowingly recruit, entice, harbor, transport, provide, obtain, or maintain a minor (defined as someone under 18 years of age) knowing or in reckless disregard of the fact that the victim is a minor and would be caused to engage in a commercial sex act. ‘Commercial sex act’ is defined very broadly to include ‘any sex act, on account of which anything of value is given to or received by any person.’ In other words, it is illegal both to offer and to obtain a child, and cause that child to engage in any kind of sexual activity in exchange for anything of value, whether it be money, goods, personal benefit, in-kind favors, or some other kind of benefit. Section 1591 also makes it a crime for individuals to participate in a business venture that obtains minors and causes them to engage in commercial sex acts.

“Section 1591 is called ‘Sex trafficking of children or by force, fraud, or coercion.’ Most people think of ‘trafficking’ as involving movement across state or international borders. However, Section 1591 does not require proof that either the defendant or victim crossed state or international lines.

“When the victim is a minor, Section 1591 does not require proof that the defendant used force, threats of force, fraud, or coercion, or any combination of those means, to cause the minor to engage in a commercial sex act.

“Section 1591 applies equally to American children (U.S. citizens or residents) who are prostituted within the United States, as well as foreign nationals (persons not a U.S. citizen or resident) who are brought into the United States and are then caused to engage in prostitution. The law also criminalizes any person who conspires or attempts to commit this crime.

“If the victim was under the age of 14 or if force, fraud, or coercion were used, the penalty is not less than 15 years in prison up to life. If the victim was aged 14–17, the penalty shall not be less than 10 years in prison up to life. Anyone who obstructs or attempts to obstruct the enforcement of this statute faces as many as 20 years imprisonment. Defendants who are convicted under this statute are also required to pay restitution to their victims for any losses they caused.

“In addition, 18 U.S.C. §§ 2421–2423 criminalize a variety of activities pertaining to the prostitution of children. For example, Section 2421 and 2423(a) make it a crime to transport an individual or a minor across state lines for the purpose of prostitution or any other illegal sexual activity. Unlike 18 U.S.C. § 1591, both of those statutes do require proof that the victim crossed a state line. If a minor is transported across state lines in violation of Section 2423(a), the penalty is not less than 10 years in prison, up to life.

Section 2422(b) makes it a crime to use the U.S. Mail or certain technology, such as the Internet or the telephone (whether mobile or a land line), to persuade, induce, entice, or coerce a minor to engage in prostitution or any other illegal sexual activity. For example, it is a federal crime for an adult to use the mail, a chat room, email, or text messages to persuade a child to meet him or her to engage that child in prostitution or other illegal sexual activity. Under this statute, it is not necessary to prove that either the defendant or the victim crossed state lines. The penalty for this offense is not less than ten years in prison, up to life. Finally, 18 U.S.C § 2425 makes it illegal for any person to use the mail, telephones, or the Internet, to knowingly transmit the name, address, telephone number, social security number, or email address of a child under the age of 16 with intent to entice, encourage, offer, or solicit any person to engage in criminal sexual activity. This offense is punishable by up to five years in prison.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November17, 2020 fall. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.

Attorney engaged in criminal defense and First Amendment law. Board Member, local ACLU affiliate. Progressive.